It’s the Justice Department’s assertion that the United States cannot be sued because it is excluded under the 1986 Electronic Communications Privacy Act. Congress preserved sovereign immunity against claims, permitting claims against only a ‘person or entity’ other than the United States.

(a) In General.— Except as provided in section 2511(2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.

In contrast, here is another section of the law:

§ 2707. Civil action(g) Improper Disclosure.— Any willful disclosure of a “record”, as that term is defined in section 552a (a) of title 5, United States Code, obtained by an investigative or law enforcement officer, or a governmental entity, pursuant to section 2703 of this title, or from a device installed pursuant to section 3123 or 3125 of this title, that is not a disclosure made in the proper performance of the official functions of the officer or governmental entity making the disclosure, is a violation of this chapter. This provision shall not apply to information previously lawfully disclosed (prior to the commencement of any civil or administrative proceeding under this chapter) to the public by a Federal, State, or local governmental entity or by the plaintiff in a civil action under this chapter.

If I understand this correctly, one cannot sue the government for collecting information via warrantless wiretapping but can sue them for disclosing the information.

What kind of reasoning is that? Isn’t that rather like saying you can rob a bank as long as you don’t spend any of the money?

Candidate Obama criticized the Bush administration for using state secrets privilege and for him to turn around and use it is hypocritical. The argument has been made that the Obama administration is just following the law to which I say change the law!

President Barack Obama endorsed a Justice Department move to dismiss a case in which the National Security Agency is being sued over its warrantless wiretapping program, because he believes the case presents a risk to national security, the White House told Raw Story Thursday.

In response to a question at Thursday’s press briefing, White House Press Secretary Robert Gibbs said that President Obama stands firmly behind a Justice Department brief filed last week which aims to have a civil liberties group’s lawsuit dismissed.

He “absolutely does,” Gibbs said. “Obviously, these are programs that have been debated and discussed, but the President does support that viewpoint.”

[snip]

“Before he was elected, the President said that the Bush administration had abused the state secrets privilege,” this reporter asked. “Has he changed his mind?”

“No,” Gibbs replied. “I mean, obviously, we’re dealing with some suits, and the President will — and the Justice Department will make determinations based on protecting our national security.”

“So he still thinks that the Bush administration abused the state secrets privilege?” Raw Story asked.

“Yes,” Gibbs said.

[snip]

The invocation of state secrets privilege as a means of derailing suits against the government is nothing new. The Obama Justice Department made this claim in February, in response to a suit brought by victims of extraordinary rendition. But the Department’s “sovereign immunity” argument is unexpected.

[snip]

Orin Kerr, professor at George Washington School of Law, believes that the Administration’s argument they can’t be prosecuted unless they willfully provide wiretapping intelligence seems spurious.